commissioner tina chang and commissioner jose lopez. also our deputy attorney who will provide the board are any legal advice this evening. at the controls is and i'm julie rosenburg, the board's executive director. we will also be joined by city directors. representing the planning department phillip clana enforcement and affairs manager for the service division. jim emway, steven keller.

leo pelosier. and gregly slowcom manager with public works. now the board meeting guidelines are as follows. people affiliated with these parties must and no rebuttal. time may be limited to two minutes long if there are a number of speakers. 30 seconds before your time is

up. now, public access and participation are of paramount importance to the board and every effort is made to replicate the process. sfgov tv is broadcasting this streaming live and we have the ability to stream public comment on today's agenda. sfgov tv is also providing closed captioning. go to cable channel 78. please note it will be rebroadcast on fridays at 4:00 p.m. on channel 26. a link to the live stream is found on the home page of our website at sfgov.org/boa. public comment can be provided in two ways. one, you can join the zoom meeting by computer, go to our website and join the link or you can call in to 1 (669) 900-6833. and enter the webinar i.d.

89373500176. sfgov is streaming the phone number and access number across the bottom of the screen. to block your phone number when calling in, first, dial star 67 and then the phone number. listen for the public comment portion of your item to be called and press star 9 so we know you want to speak. you will be brought into the hearing when it's your turn and you will have two or three minutes depending on the length of the agenda and the volume of speakers. you will be given a 30-second warning when your time is almost up. it is very important that people calling in reduce or turn off the volume on their tvs or computers, otherwise there's interference with the meeting. if any of the participants need disability accomodation or technical assistance, you can make a request in the chat to alex longway or send an e-mail to board of appeals at

sfgov.org. now, the chat function can not be used to provide public comment or opinions. now, we will swear in or affirm all those who intend to testify. please note that any member of the public may speak without taking an oath. if you attest to have your testimony raise your right hand. do you swear or affirm the testimony you're about to give will be the truth, the whole truth, and nothing but the truth. >> i do. >> so we do have one housekeeping item. the parties for item number eight. it's an appeal of the denial for service of various locations. they would like this continued

to october 6th. we do need a motion and a vote to continue it. however, as a preliminary matter, president honda has a disclosure to make. >> president: yes. my wife. >> why don't you just turn off the camera and the sound and i will text you when the vote is over to rejoin. on that housekeeping motion, commissioners, we do need a motion. >> so moved. >> okay. we have a motion from commissioner lazarus. i see two hands raised, but i don't think it's on this item

hello? lisa b.? we cannot hear you. you're on mute. i can't hear you. okay. we also hear someone from d.p.w. i'll try one more time. lisa b. are you here to comment? >> lisa b. wrote in the chat she has no comment. >> okay. thank you. on commissioner lazarus's motion to continue this item, commissioner lopez, [roll call] so that motion carries 4-0 and i'm going to call president honda back in.

one moment. >> president: i'm back. >> director: okay. great. now we are on to item one which is general public comment anyone who would like to speak on an item that is not on tonight's calendar. if someone would like to speak on an item that is not on tonight's calendar, please raise your hand. okay. i do not see anyone's hand raised so we will move on to item number two. commissioner comments and questions. >> president: i have none. >> director: okay. we will move on to item number three. the adoption of the minutes. commissioners before you've heard discussion and possible adoption of the august 18th,

2021, minutes meeting. >> president: does anyone have any changes or alterations, may i have a motion to accept those minutes? >> commissioner: i'll make a motion to accept those minutes. this was the first time there was a pause there. >> president: thank you. >> director: okay. is there any public comment on vice president's swig's motion to adopt the minutes. seeing none. on that motion, [roll call] we can't hear you. [roll call] so that motion carries 5-0 and the minutes are adopted. we are now moving on to item number four, this is appeal number 21-064. george horbal versus san francisco municipal transportation agency appealing an issuance on july 9, 2021, of

the decision to reconsideration. he does not have a california driver's license and is not eligible to possess an a-card. without these licenses, the taxi medallion can be revoked pursuant to the transportation code. the notice of nonrenewal is upheld and a medallion is revoked. this is medallion number 1303 and we will hear from the appellant first. mr. horbal would you like to go ahead? >> president: if you could unmute him. i think he was having issues. >> hello, can you hear me now? >> director: yes. we can. >> thank you very much. my name is george horbal. i'm 74 years old.

i've been born and raised in the richmond district. i've been driving a cab from 1963 to 2016. i'd still be driving. but i had my kidneys fail on me. three operations for my kidneys and one for cancer and i'm still alive. but now i'm in for another fight of my life. i'm now fighting for my economic life. apparently, the city wants to take my medallion away and i'm hoping that you will not let this happen, this great injustice happen. with the medallion, i have a little hope of economic security and a little bit of dignity if and when the cabs come back. so it's my hope and thank you for providing me with this opportunity to save my case. it's my hope that you'll permit me to keep my medallion and stop the city from grabbing it from me. that's really all i have to say

and thank you very much god bless you. and i'd like to turn it over to my friend carl. >> i'm carl. three weeks from today, another california driver's license or c.d.l. case is on your case for james cordesis. at least two other c. d.l. cases may end up here. it's city deputy attorneys to represent an agency. in two weeks, witness testimony begins in the $150 million damage claim lawsuit filed by the credit union against the agency and city related to failures in the medallion sales program. the same three attorneys are representing the city in the jury trial so really, tonight's hearing is related. in a court filing, the credit union as a sworn statement from a transportation regulator now designated as its expert witness in the trial. nonenforcement of the driving requirements affected the

ability of medallion holders to repay their loans, buyers, i should say. we respectfully disagree. possibly, the city attorneys are here tonight that it has enforced a driving requirement or as noted in our brief, the agency's motivation is to enrich itself by controlling more value. we don't know exactly why the city has assigned three attorneys to prosecute mr. horbal but do note medallion revocations have been in front of you like this for 18 years. changing gears. we now describe the hypothetical of how a new taxi driver might have become a medallion holder. around that time, partly due to a shortage of taxis, a driver could do very well financially. most new drivers regarded it as an interim job while pondering other careers.

taxi drivers functioned as city ambassadors and the job was interesting and exciting. there were many draw-backs however, the constant threat of a major accident. the cumulative toll on the driver's internal organs and the knowledge it was a dead end job with no opportunities. taxi drivers are of the highest homicide rate. it was a cash-only job. most through surveillance cameras and no in-taxi security cameras. the city chose not to municipalize taxi drivers and instead allowed for independent contractor status. taxi drivers enjoyed major flexibility and freedom that did not have ordinary job benefit its including retirement income. however, the drivers willing to make it a career commitment for those there actually was a path

which operated the permit to pay the me dall yong holder a monthly fee of about $2,000. mostly so the next eligible applicant on a lengthy medallion waiting list established on prop-k 1978. there are no guarantees in life, of course. many small grocery stores were walmarted out of their life savings and walmart destroyed competition. now, we older medallion holders have been ubered out of our retirement over the past several years. mostly, monthly medallion income is typically 0 right now although the pandemic also is

partly to blame. back to horbal. hear first, he denied the agency's attempt to revoke the medallion. issued after the city attorney's office intervened. in both rulings, he finds that issues of equity actually favor mr. horbal's decision. currently, this follows major problems. some taxi medallion values returning. mr. sebastian suggests gender and market based medallion sales model under which mr. horbal might receive rightful compensation. horbal's case mirrors the 2003 case in which your board overruled the agency. once again, it involves a wheelchair bound medallion holder who can no longer drive, but can operate a business

permit. medallion holders have a current cdl, until the past, the agency has never opted to use this discretionary or disabled career driver medallion holders with the taxi driver's licenses were low for the first-time applicants in which case, they would need the c.d.l.. finally, we believe the federally mediated settlement cosigned by the city in 2010 prevents the agency from revoking mr. horbal's medallion. thank you for listening to all that. thank you. i'm fine. that's all i have to say for now. >> 30 seconds. >> director: thank you. we do have a question from president honda. >> president: thank you, mr. mcmarto. so going over your brief and, you know, i enjoyed your brief and my father was too one of those interim drivers in the '80s with a taxi, but you stayed here, he refers to

prop-k had to swear only to intend to be a full-time driver. so if what i'm having problems with with the city's case is that the actual language or does it say "must drive"? >> it's in one of the exhibits i sent in, it's probably the first one or not the it's actually exhibit no. 6, section 2b says that the applicant for the medallion swears the intention to drive. and so what really happened as you read my brief, in year 1988, more than 30 years ago, it was codified incorrectly into the police code on that it was mandatory to drive no matter what and there were no mitigating circumstances that

could be considered and that's been handed down for more than 30 years andry who's come into office as a regulator. it's really what we're asking tonight if you look back and maybe if you support mr. horbal, he also sent a letter to the agency and asked them to clean up their interpretation because also a.d.a. came to that and should protect people and for example get rear ended and para. >> vice president elias: ed until driving a cab. so we don't understand the interpretation and never have. >> president: that's what i'm trying to find out what the actual language was and what there is in interpretation. the other question i have is back in the '80s, you know, i believe taxi medallions were value north of $250,000 upwards to half a million dollars which was more than a price of a single family home in those days. what is the current value of a taxi medallion now, sir?

>> um, if you're asking the actual value if they were bought and sold today on the market, i would guess it would be about $50,000 and the only reason it would be worth that much is because speculators figured that five years from now when, you know, the royal family of saudi arabia and everyone else who got suckered into buying travis stock and making him a multi-billionaire. when that business fails, the medallion value will go back to $250,000. but it's probably going to take five years. that's the best i can tell you. i don't know what else to say. >> president: you answered my question finally. i find it quite amusing or kind of sad that the taxi lost their business to a ride share. you know, my parents always said to share, now share means that i would charge you to play with my toys. okay. thank you very much. >> no. that's very kind of you and

that is the language in prop-k and one of the documents was called -- >> president: thank you, sir. i'm sorry. >> thank you very much. >> director: vice president swig has a question. >> so i need to be educated and i'm going to ask the same question of the city representative when that representative speaks next just to prepare them. you use -- i am unclear as to the ownership structure of a taxi permit. i understand clearly that if you are not holding a license and you are unable to drive that you cannot implement on an individual cannot implement on driving that taxi for which they have a medallion.

but how does a medallion come into the possession of the medallion holder in the first place. and, you use the word "least" in your testimony is and i need some clarification as to does the city sell or lease a medallion or license a medallion and where is the, is there in fact any equity intended when the city leases, i'm going to use your word that medallion to the medallion holder, or is it a performance driven item which is conditioned on those two issues

of being able to drive a license and the ability to drive or is it -- or is there another condition which is that the medallion will be utilized by the individual or some qualified agent of the medallion holder? sorry for the long question, but i just need to know that process and the qualifications. >> well, yes, so many questions. i'm so old i don't know that i can follow it all, but i'll do my best. so as far as how people came into possessions of the medallions. before 1978 the medallions were bought and sold. from 1978 to 2010, buying and selling was not allowed. people put their name on a list and waited about 14 years and

got the medallion for nominal processing fees. subsequent to 2010, they've gone back to buying and selling and these permit holders, the ones who bought paid $250,000. so the subset of medallion holders like myself and george horbal are the prop-k medallion holders who dp not buy, but waited on the list. so we already had a work permit which was a taxi driver's license. what we got after waiting 14 years and making a career commitment and thinking it would be some retirement income possibly is a business license that we were charged with a requirement to put the taxi on the streets 24/7 to serve the public. some people can do it by themselves, others mostly at the time went through a taxi company which met all the requirements of insurance and buying cars and shift scheduling and this sort of

thing. there really isn't a driving riernlt. back to that issue, we swore that we intended to drive. so the proper interpretation of that law into a municipal code would be to have a case by case analysis. if someone can find a medallion holder who got one of these who's never really a medallion holder, i say take away their permit. not someone who drove 43 years. unfortunately, there weren't a lot of people there's no real monitoring of the driving so you have police captains wives and fraternities andings figures, any person working could have signed the list and they mostly sold the medallion in 2010 as soon as there was a pilot program giving them the ability to get $200,000 to get out. but there may be some still there. so i'm just saying that there isn't really a driving

requirement that never ends we already had the biggest cab company in san francisco go out. and i. >> commissioner: i want to get to the point and i don't want it to lose it. so you said that there is yes or no answer. you said that there is no driving requirement. and but obviously it would be the expectation that the driver or medallion holder would keep the car active. isn't that correct? >> correct. >> commissioner: just yes.

yes? >> yes. >> commissioner: okay. >> except let me clarify. additionally it wasn't a requirement because you were young and healthy and you were not supposed to have another job and draw the income. there was never no ending driving requirement. it was an intention to drive that had to be measured in my opinion. >> commissioner: okay. so let me ask you this. if a medallion holder like mr. horbal had a assuming mr. horbal has the medallion and cannot drive and mr. horbal allow somebody else to drive for him who meets the criteria of being licensed type a, the other criterias? >> absolutely. even when we were young and healthy if we drove five days a

week. let's say there were 14 hour shifts in the week. the taxi to just sit idle four hours. if i go four or five shifts, that leaves another nine shifts where a qualified licensed driver would be serving the public with that operating medallion. that's exactly correct. >> commissioner: all right. so, in fact, the equity in the lease and i'm sure that the representative from the city will comment on all these questions, so the equity from the lease is really that ability to leverage that medallion for further use of the car by a qualified driver beyond that of the medallion, the issuance of the medallion so the equity of the lease is that ability. so what you're saying -- i

don't want to do your testimony for you but i want you to affirm that by that you're -- that mr. horbal as the lessee is -- can maintain the use of that medallion and the integrity of the lease of that medallion by, in fact, if he could finding somebody else to stand in for him so he becomes a one-car company basically as long as of course he has proper insurances and all the rest of the stuff. is that so? >> i think so. you lost me a little bit with the diversions of the one-car company, but regardless of how we operate, it's safer for a young healthy person or a

healthy person to be driving rather than a feeble person because there are a lot of medallion holders like the one that tried to take action on 11th and market street. out there driving, but shouldn't be but aren't 100% disabled. but obviously it is a requirement for mr. horbal and myself makes sure someone behind the wheel has a license and is trained. >> commissioner: so it is possible legally for a lessee of the medallion who cannot drive the car for any particular specific reason like mr. horbal to engage a person, let's say me who has a type-a license who meets the other criteria who is properly insured to drive that car on

his behalf and maintain the integrity of the lease and then have a private agreement in a revenue share. is that -- >> that's correct and it's been that way for the past 30 years for prop-k medallions. people who were legitimate who drove 35, 40 years and retired and maybe had 5 or 10 or 15 years to live, they were able to have that as their income. when they died, the permit went back to the city. >> commissioner: got it. >> president: thank you very much. i appreciate it. and i'm sure the city will comment on that. >> they won't agree with me. >> commissioner: all right thank you. >> director: thank you. we do have a question from commissioner lopez. >> commissioner: thank you. yeah. i'd love to hear, you had some references to the credit union litigation in the brief. you made reference to it

briefly in your opening remarks. i'd like you to just set a stronger connection for us in that pending litigation if you can let us know what the current posture of the case and what connection does it have to what you're asking us to do here tonight? >> well, the testimony begins on september 13th, the witness testimony and later tonight, i'll send the board a copy of the court document that shows, has some information about that. the connection right now is that well, it's not a strong connection. it's a separate issue that the medallion is annished license and not a permit and we sworn the intention to drive for 30 to 40 years. and driving requirement. all the medallion owners have

been left alone. that's why you haven't seen a case in 18 years. as far as a credit union case goes, there's a lot of money involved and what's happened is at the current sales prices, $250,000, there's no movement in sales at all and the persons who can't pay back their loans and that loss is about the credit union suing the city for the damages, you know, that's a separate lawsuit. the hearing officials in horbal's case, the hearing official in both of his opinions mentioned that he is speculating that the outcome of the loss will probably be a movement to a market price sales model and if it's correct, someone might offer george or me or someone who wants to sell something like

$50,000. i don't know. i'm sorry i can't answer better. >> director: okay. >> commissioner: that's helpful. thank you. >> director: okay. thank you. we will now hear from the sfmta. i'm not sure if mr. cyaner or mr. emery will be speaking. >> i will speak and if mr. cran is here i hope he jumps in. good evening, commissioners. thank you very much. deputy city attorney. the situation over the last five years for the taxi industry and taxi drivers motivated by in his first decision on reconsideration. the hearing officer recognized

that not withstanding sympathy, his rule has to be based on the transportation code. and everyone agrees. the officer, the m.t.a. and mr. horbal that the transportation code has a full-time driving requirement. the particular provision of the transportation code is identified and m.t.a.'s brief 1109-c1 and there's no dispute about that language. mr. horbal has raised some questions about what a prop-k says, courts have already looked at that and courts have already said problem-k imposes a full-time driving requirement

on prop-k permit holders. and those are the two decisions that were submitted with the m.t.a.'s brief both the federal division in the sloan case and the state court decision in the permit holder's case. gave the m.t.a. the authority to probable gate new laws for taxis. so there is no issue about the validity and the force of 1109c 1 of the transportation code

which imposes the full-time driving requirement. there's no dispute mr. horbal is able to satisfy that driving requirement. moving on to the questions some of the commissioners asked. the problem-k medallion is a permit. it's not a license, it's not a lease. it's a permit and it is issued subject to the compliance the requirements for that permit. and, we know that mr. horbal cannot satisfy those requirements. the m.t.a. taxi division has the responsibility to regulate the taxi division, the m.t.a. taxi division has decided that it must enforce this rule in this case with mr. horbal. the hearing officer recognized that the enforcement discretion rests with the taxi division

and not with the hearing officer and that is why this commission should uphold the decision of the hearing officer. i guess this would be the time frame to do that. >> i just wanted to add that -- >> director: i'm sorry we can't hear you. >> okay. can you hear me now? >> director: yes. >> okay good. sorry. as he mentioned these medallions are required by putting your name on a list. there was no monetary cost. there's other names for these prop-k medallions. the question about the value, the way prop-k was designed to work was a working driver would hold the medallion -- >> director: i'm so sorry. can we pause the time. you keep cutting out and i want to make sure your audio's not

lost. >> if you don't mind, i'm going to grab different ear buds. >> director: no problem. take your time. thank you, everyone, for your patience as we deal with technology. >> i guess i can stand up and deal with my sciatic nerve issue. >> how's the audio now? >> director: okay. it sounds fine. >> okay. i won't move. i'll keep it that way. i just wanted to reiterate as he stated, the medallions, the drivers put them on the list

and the way prop-k was designed to work was working drivers would hold the medallions and when they were finished and unable to meet the full-time drivering requirements, the way it was designed, they were supposed to give it back and it was supposed to go to the next person on the list. i know there was questions about the value back in the 80s on what they were worth. there was no actual cost for this class of medallions. that's just the last thing i wanted to. >> director: okay. thank you. we have a question from president honda. >> president: yeah. so either one of you thank you for your brief. it was very thorough. questions i had. so there was no value, but were they selling for -- were they being given away or were they being sold? >> the prop-k medallions were issued for no cost to an active

driver on the list. who is on a waiting list. >> president: but so -- oh, so they weren't able to resell those particular medallions. >> and as mr. cran had just explained, the way the problem-k program was built and established when that individual driver was no longer able to fulfill the full-time driving requirement, that driver was supposed to return the medallion to the city and then that medallion would go to the next person on the list. and that was the system that was in place until 2010. >> president: okay. and so i've been on the body for almost eight, nine years and we've not had this before where someone was misusing the

medallions. do you have other cases like this? how often does this come about? >> well, the taxi division has been enforcing its rules over time. this is the first case it's come to you through the hearing officer to the board of appeals. there are some others pending. >> president: and is that prior enforcement or is this all coming at this particular time. >> there was some prior to my enforcement. >> president: when was that? >> i began in 2017. >> president: so you stated there was enforcement prior. >> prior to my time with the agency. >> president: you're saying as a matter of fact there was enforcement, if you're stating that, when was the enforcement.

>> i'm not certain of the date. >> president: there was enforcement or no enforcement. >> there was enforcement. >> president: i'm not trying to be argumentive but you said for a fact there was enforcement. >> you're muted. >> director: we didn't -- president honda, we can't hear you. >> he got muted. >> there we go. i hit the button. i got excited. i'm not trying to be argumentive, sir, but you stated as a fact there was enforcement, but now you're saying it predates you. but how do you know if there's enforcement if it predates you? >> i spoke to my predecessor. >> president: okay and so would the other deputy city attorney have any input on that, mr. emery? >> no. i do not have any more specific information. >> president: because i've been on this board for nine years and i've not seen that prior. that's what i'm asking. and so when you tell me that there was prior cases, and you

state that as a fact, then i would like to know when those were. so now it's not as a fact, it's hearsay that your predecessor told you, but you have no evidence that was fact. so given that there was no cases prior, why is there now six cases that are being in front of you, sir? >> upon review, i was not the permit manager. i'm the enforcement manager. i took a review in 2019 and i did a permit renewal on the fiscal year. i did a review of all permit renewals and i discovered that several of these medallions were out of compliance [inaudible] that'd be medallion holders did not have a valid-a card which is a requirement of of the transportation code. >> president: and, is that something that you -- that is regularly done or is that something you took it upon yourself? is this an annual event that

is, that you'll check? is there a system that says that? >> there is now. like i said, i wasn't involved in the permit renewals in the medallion exchange as we called it. but i became involved in 2019 and as i was reviewing the files for renewal, i determined that several were out of compliance. at the time, it was like june and so the decision was made to renew those medallions and prepare for [inaudible] >> president: sir, your audio is cutting in and out. >> okay. sorry. >> president: so your testimony probably was not heard. can you repeat that. >> sir, in 2019, in june, i was reviewing the files and there wasn't enough time to make that nonrenewal decision because the medallions needed to be renewed on july 1st and so the decision was made at that time to

undertake this effort for fiscal year 20 and that's why we are here now. >> president: okay. and then my last question was this is all new to us. we're not taxi specialists. you guys are the taxi specialists. so the information that we only have is what's provided in our brief, right. there's a lot mentioned regarding prop-k in 1978. in the appellant's brief, he stated that what was the language he stated? that in prop-k, you have to -- hold on, let me find it. >> director: for an intent to drive. >> president: thank you madam executive director. what i'm trying to determine was what was the original language or legislation and what we're having now is that an interpretation or is that the original language? >> i believe mr. horbal

attached a copy of proposition k as mr. emery mentioned proposition k and it's codified in the charter section 8a 101 where the m.t.a. has exclusive jurisdiction and authority over the taxis, everything relating to taxis and as mr. horbal indicated 1109 is where this is codified and where it says every medallion holder is a natural person between [inaudible] march 27, 2010, shall be a full-time driver. there's no dispute this is a propositionk medallion and that is a department of this class of medallions. >> president: thank you, sir. i believe other commissioners have questions. >> director: thank you. we have a question from vice president swig and then commissioner lopez. >> commissioner: okay. thank you very much. i'm looking in the brief.

let me ask one more question to you gentlemen on the subject of equity. so thank you for clarifying that this is not a lease. it is not an owned license, but, in fact, it is a permit. is that characterized properly? >> yes. >> commissioner: okay. so this would be the same type of permit that if i want to stage -- i'm looking out of my house and stage a concert on the marina green, i would go to mr. ginnsburg and ask him for a permit to stage a comment and if i'm asking for criteria, i get to stage the concert, right. just a regular permit. yes? it's not a trick question, guys. >> yes. >> yes. >> commissioner: okay. thank you.

and, therefore, that permit really doesn't have any equity. the equity piece is what i'm trying to tie into. i can't sell that permit on the marina green is that right? >> yes. and particularly with these permits, e1 of the transportation code says explicitly that no body has the vested right in exchanging the permit for money. >> commissioner: okay. so i'm looking at a document which quotes prop-k and it's -- i'm taking it from another document. the document is labeled as document and it's to maryanne costello and thomas owen and

its and for some clarification on prop k and let me ask before i read this. is prop k in this? is this still the guiding direction and guiden legislation on the permit in question today? >> yes. this permit, this taxi medallion was issued under prop k. >> commissioner: okay. so nothing has superceded problem k? period. correct? >> well, the transportation code governs all the medallions including prop k medallions and the m.t.a. has authority to pass and enact regulations in transportation code regardless of what prop k says. so the transportation code governs. >> commissioner: okay. so i'm going to read something

from prop k which may be unfortunate to the permit holder, but oh, well. i'm sorry. and it says if i'm quoting from this document, "proposition k requires that a permit holder quote actively and personally engage as permittee driver under any permit issued to him or her for at least four hours during any 24-hour period on at least 75% of the business days during the calendar year." so there's no arguing with that because that's in writing, that's in a document. so my interpretation of that is that if an individual like mr. horbal can no longer drive four hours during any 24-hour period on at least 75% of the

business days during the calendar year, then that permit holder is not fulfilling their obligation to the terms and conditions of that permit. would that be considered correct? >> is that why we're here? >> we're here because of the transportation code which has the same requirements in it. it's the transportation code that really governs the rights and obligations. >> commissioner: so to my other question previously to the appellant or the appellant's representative, even if the appellant found a qualified driver with a type a license etc., etc. and had that individual drive four hours a day during any 24-hour period on at least 75% of the business

days, that still wouldn't fit the criteria of the permit's terms and conditions, correct? it would have to be the permittee. >> that is true. the permit hold the prop k medallion holder must be a full-time driver. now, there are more hours in weeks than a single driver. so a medallion holder who does fulfill that requirement of the medallion made in addition lease the medallion either to a taxi company or to another driver. >> commissioner: t fundamentally that's the reason why you're here today and this permit holder has been stripped of his permit is because according to the terms and conditions of the permit and

the legislation, unless he can drive those four hours 75% of the time, then there's no way that he can qualify to maintain this permit, correct? >> that is exactly true. >> commissioner: okay. thank you. >> director: thank you. and we have a question from commissioner lopez. >> commissioner: thank you. just a couple questions, mr. emery. the transportation code doesn't outline there's a right to sell the permits, but under the -- this loan settlement, the creation of the surrender program, that does give certain folks and the appellant's situation a right to sell the permit, correct? >> no. there's no right to sell permits at all. and that's what section 116a 4 of the transportation code makes entirely clear. there's absolutely no right to

sell or to return a permit and receive consideration for it. i'm being specific and not using the word "sell" because you can't sell something you don't have. that's the medallion and permit, that's not something that the driver owns. the sloan settlement doesn't have any force at all or suggest that there's a right to choose compensation for the permit. the trial court sloan case the m.t.a. submitted that decision. that decision by the trial court and said there is a full-time driving requirement. the full-time driving requirement for the americans with disabilities act and the

a2 drivers appealed that and then they decided to drop their appeal. one of those drivers said, "well, the reason i'm dropping this appeal is because m.t.a. has a new program and under the new program. i can get some compensation." but if there had been any hick ups along that road and if that appellant had been unable to get consideration for his medallion, the only thing he would get was he could pick up his appeal again and the appeal that he had lost. it wasn't any right that those conditions for dropping the appeal did not establish or recognize any right to a compensation. >> commissioner: but absent pending an appeal, the program,

would, you know -- so absent a permit holder that's in enforcement proceedings, the surrender program does give a pathway to compensation for permit holders is that a misunderstanding. >> that's a hypothetical pathway now because nobody is signing up to get the medallions. >> commissioner: and the agency signed that program, correct? or was that something imposed? >> the agency created the program in 2010. >> commissioner: just shifting gears, you know, i'm wondering and mr. cran feel free to chime in as well, it sounds like and maybe i'm just not familiar enough with the enforcement regime, but it sounds like

there's perhaps enforcement officers who have some discretion in terms of which matters they choose to enforce and, you know, may kind of bounce the equities individually in the process of choosing which matters to enforce and then there's, you know, presumably an appeals hearing officer that's, you know, as i think numerous sides have stated here, they're very much bound by the transportation codes in terms of whether the enforcement action is, you know, appropriate for an appeal. is that generally correct and, you know, if that's correct, can you give me a sense for what kind of volume the enforcement officers have in terms of reviewing matters for

enforcement versus a hearing officer? >> well, the analogy that sticks in my head is not everyone who drives 90 miles an hour on 2a gets a ticket and the fact that you got a ticket and somebody else didn't is not a basis to challenge. the enforcement in this situation and i will acknowledge that there are people who have been maintaining medallions that are not entitled to them and it took awhile for the m.t.a. division to catch up with these people. i consider that a benefit they had for several years that they were not legally entitled to. not a justification to keep the permit they're entitled to.

it was found by the transportation code and the transportation code says that. the enforcement discretion rests with mr. cran and with the m.t.a. taxi division. this hearing officer according to section 1120e 1 of the transportation code must base his or her decision on the transportation code and there is no room for those equitable discretionary actions because it's the taxi division that has the authority and that's what we need to preserve here. and just pulling that a little bit further, the appellants made the statement that the matters such as this haven't been enforced something like this for 18 years.

can you react to that statement? >> i'm a late arrival in the taxi regulation. he's been with the m.t.a. since 2017 and i'm certain that there has not been 100% enforcement and just like on the freeway driving 90 miles an hour with imputin and it's happened in the past and it's not happening now. >> commissioner: got it. that's it for me. >> director: thank you. we have a question from president honda. >> president: yeah. so going back to that, my question is as you said it took awhile and i understand your analogy of everyone drives 90 miles an hour on 280 and doesn't get a ticket. when you said it took awhile, it is now 2021. how long that's this been in effect and when did it take

awhile and you said you're late to this particular case as well as philip cran says he came in 2017. but before your body this evening, did you not anticipate that question was going to be asked how many cases prior have come up? >> no i didn't anticipate because i don't think it's relevant to the situation here because the m.t.a. taxi division has complete enforcement discretion and the fact that they did not enforce a law for a number of years does not make the law unenforceable. >> president: no. i understand that. but is there a particular reason why it's being enforced now? is it just that it just came to light or does this have something to do with the potential litigation that's going forward? >> as the enforcement manager, i was not aware of this and i was made aware when i stepped outside of my role and stepped into permitting role. so like i said in june 2019, i

became aware of this situation. >> president: okay. so the current enforcement that's before us again is the potential that will be before us that does not have any effect on the litigation or the outcome of the litigation or the effect of the litigation, is that correct? >> thank you. >> director: we have a question from commissioner chang. >> commissioner: thank you. i understand there's no room currently in the transportation code for issues regarding equity, but are there considerations being made before the board now and is that on the table for future modifications or revisions to the code? are you aware? >> i'm not aware of any amendments being continue plated to the code.

the discretion and the equities are in the hands of mr. cran and the m.t.a. taxi division that's where the discretion and the taken into account the entire industry and the best interest of the entire industry. that's where the equity lives and i'm not aware of any consideration to move that to another body the hearing officers who are removed from the day-to-day needs of the taxi industry. mr. cran is there and that's where enforcement discretion belongs. >> commissioner: right. but if the enforcement is bound by a transportation code and there's no room for that discretion in the code, then how does -- where does that discretion come in? >> like what room is there for someone like mr. cran to kind of employ that discretion? >> well, mr. cran has resources

the same way the california highway patrol has resources and i think it's a very helpful real world analogy that say makes decisions based on the best interest of the public and the industry as a whole and they direct their enforcement resources where they think it makes the most sense. that's the discretion. >> commissioner: thank you. >> director: okay. thank you. we are now moving on to public comment. so the phone number ending in 9970, please go ahead. you have three minutes. >> i think it's three minutes. >> director: yeah.

three minutes. okay. try pressing pound 6. the phone number ending in 9970. okay. we're going to come back to you. we will now hear from robert sesana. please go ahead. >> can you hear me now? >> director: yes. we can hear you. you have three minutes. >> good afternoon. i'm really puzzled by this whole case and i would like to support mr. horbal. i originally attended the hearing of the taxi commission in 2003 when you supported the

decision that ms. rivera could retain her medallion and the similarity in these cases is very interesting because ms. rivera was in a wheelchair and so is mr. horbal and the reasoning behind the decision was because of a.d.a. now, if we fast forward to 2010, that decision that the city attorneys are talking about was actually passed on to the nineth circuit court of appeals which the city attorneys don't want to refer to and the city of san francisco signed an

agreement allowing the four people with -- that were represented by the national chair to have an option of either holding the medallion or selling that. in 2010, the then director of the m.t.a. taxi division instituted a buy-back program for k medallion holders. and, the condition of the buy-back program was, you had to be 60 years old or disabled. and, this was because of a.d.a., the transportation code makes no account of a.d.a. and

you cannot have any organization making up their own rules against a federal law. however, let's just go on a bit. after the -- >> 30 seconds. >> yes. after these medallions were sold, the m.t.a. started a sales program and many k medallion holders actually sold their medallions through the m.t.a. and this denial about value and everything depends on who's sitting on what chair and when. thank you. >> thank you. time. >> director: thank you. we will now hear from the phone number ending in 7554. please go ahead. i believe it's marcello

fonsaka. 7554. try pushing pound 6 i believe. okay. we're just having some technical issues. you're muted. try pound 6. marcello fonsaka, i see your hand raised. let me see. okay. the phone number ending in 7554. >> might work. >> director: okay. star 9 is raising the hand. they're unmuted now. >> hello can you hear me? >> director: yes. >> yes. my name is marcello fonsaka and i'm a prop k medallion holder.

just so this board knows, the medallions acquired after 2010 through the now medallion sales program, the holders do not have a driving requirement just as information. my interpretation of the applicant's pledge to drive full-time in problem position k does not translate into driving until you drop dead behind the wheel. prop k intended that real cab drivers got medallions. mr. horbal is the essence of a cab driver. he drove for 43 years. now that he can no longer drive because of disabilities that bind him to a wheelchair, the city wants to revoke his medallion. this is discrimination against a disabled person. very likely in violation with a.d.a. laws. revoking his medallion will send a chilling message to

other medallion holders who are not fit to drive to comply with this miscodified driving requirement in the m.t.a. transportation code. such policy is malfeasant. thank you very much. i urge you not to revoke his medallion. >> director: mr. fonsaka, when you unmuted yourself, did you press pound 6. >> i tried pound 6 and later star 6. >> director: okay. thank you. we will now hear from the caller whose phone number ends in 3265. please go ahead. >> good evening. >> director: welcome. >> good evening, board members.

my name is charles speaking on behalf of the appellant. this is a case of the marine corps veteran with a perfect record in the taxi industry whose permit is being revoked solely because he has become disabled. it is manifestedly unfair. the results of a poor requested ballot measure that was passed before the right of disabled peoples were establisheded. please send this back to the agency with instructions to update the rules. it's time to end the wildly swaying pendulum of tax and regulations. there were decades of nonenforcement followed by a quarter million dollars pay-out. so many prop-k medallion holders and now for others. revoking mr. horbal's permit does nothing to benefit the

public. the sole beneficiary would be the credit union which is one of the largest corporate medallion owners in the country. its hundreds of medallions will inch upwards in value and other medallions such as mr. horbal's are removed from the pool of potential sellers. that's why the credit union has complained in its lawsuit that sf.m.t.a. has not enforced the driving requirements. this revocation is an outrageous injustice. it robs impoverished individuals while providing no value to the public. please do not revoke mr. horbal's medallion. >> director: okay. thank you. we will now hear from dean

nayhart. please go ahead. >> hi, i started driving a yellow cab in 1970. at that time, we had the union contract. we had minimum wage. we had paid vacation. we had pensions. we had overtime. and since 1989, i earned prop k permit. and i have an exempted disability waiver since 1997 when i was made talking funny until last year. so for 23 years i have been afforded a waiver. a waiver good for 23 years, but

not this year. that's very similar to mr. horbal. so i'm saying why can't the disability waiver given to mr. horbal last year be good this year? i'm just wondering if you can employ your novists of the unit state its federal law regarding disability to rule in favor of mr. horbal and later of me when my appeal comes up.

in the 1950s, a cab driver could buy a house in the sunset. a cab driver made twice as much as a bus driver and in the 1970s, a cab driver can make as much as a bus driver. now it's an administration of the sfmta while hardworking cab driver might qualify for food stamps as a disability disabled cab driver with a prop k. >> 30 seconds. >> while in the soup kitchens and welcome to sleep under the bridge. this is because of the mismanagement of sfmta. certainly we can do our best this time for our citizens of

san francisco and for mr. horbal and me. thank you. >> director: thank you. we will now hear from dennis corcose. mr. corcose, did you want to provide public comment? okay. we can check back with you. okay. the phone number ending in 9293, please go ahead. i believe that's nathan swooery. >> hello. >> director: hello. welcome. >> hello. this is dennis corkose. >> director: okay. please go ahead. we'll hear from nathan after. yes. we're going to hear from dennis corkose first. my apologies. then we'll go to nathan swooery. mr. corkose please go ahead. >> hi there. my name is dennis corkose and

i've driven a cab for almost four decades and i wanted to make some comments about what was said. mr. cran has said the prop k medallions should be given back when drivers have stopped driving. since 1978, that has never happened. mr. emery said it took awhile for enforcement to take place, but once again in 43 years since 1978, that has never happened. have you never had a medallion revoked for not driving. usually, what happens to somebody when a driver received a medallion, they would work it while they could and then when

they retired, they would receive lease payments for leasing their medallion out to other drivers. that was the value of it that was the retirement value of it. so in every way shape and form it was treated like a purchase. it was never treated like anything else and whether or not the city enforced whatever rules that they're defining now as, that's almost like a mute point because if you have a property and you have thousands of people crossing it every day for 40 years, you develop kind of an easement and this becomes the rule of law. and this becomes the way that it is. you can't just come in one day and say, oh, well, we're not going to let these people cross anymore because we decided that, you know, that we don't want them to.

so, let me just jump to the disability program. the m.t.a. has in place a disability program that gives permit holders three years disability for each ailment that does not allow them to draw it. mr. horbal applied for this in 2017. there is no driving requirements in 2020 or 2021. >> 30 seconds. >> this is not appropriate to revoke his medallion for not driving or for not getting an a-card while there's no driving requirement. he has the right to file for disability for whatever reason he has. i was going to make some other points, but i forgot what they were. >> that's time.

>> if anybody has any questions please. >> that's your time, sir. thank you. >> director: thank you. we will now hear from nathan weary. please go ahead. we heard you before. phone number ending in 9293. try pressing. >> star 6. >> director: star 6. mr. dreary. okay. there seems to be a lag. can -- we can't hear you. so we will -- i see you now. please go ahead. you have three minutes. >> all right. thank you. my compliments to the board for their forbearance in all this

time. in the 50s, i enjoyed splashing around in the sue trudeau paths and sliding around at the playland at the beach. in 19 synced 5, while in college, i started driving cabs in san francisco. moving forward to 1990, i had the pleasure of being the present general manager of yellow cab for 10 years until the year 2000. i just want to focus and zoom in on these discussions about the transportation code. when the sfmta took over the regulation taxicab san francisco about 14 years ago, i believe, they got a clean slate. they could ignore the regulations. they could adopt propositionk or not. so all this talk about regulations and how they have to observe regulations, they like them, they enforce them,

they interpret them. so this think about taking mr. horbal's permit away who by the way i've known for many years. this is the taxi division. the only obvious accomplishment is it's going to make mr. horbal feel it's going to be a waste of his life by taking the last self-respect away in his life to revoke his permits they can also choose to leave things. they have the authority and option. i urge the board of permit appeals to once and for all take away the authority of the whole procedure. thank you. >> director: thank you. we'll now hear from the phone number ending in 1106. please go ahead. try pressing star 6.

okay. i see that you're unmuted. please go ahead. the phone number ending in 1106. >> yes. thank you. my name is mark gruger. i'm a san francisco taxi driver since 1983 and i have a proposition k medallion and i continue to drive although i have not been driving throughout the pandemic i don't want to talk about the substance of this issue, but i do want to talk about the process because i think there are some grave procedural flaws here and actually i believe that the decision that was made is unlawful and that has to do with the reconsideration after a decision was rendered in favor of the appellant.

it was taken under reconsideration from all appearances only to undo influence, but however that came about, i do believe it is unlawful. the decision had all the earmarks of finality about it. it went through all the various procedural requirements. in the end, a notice was served on mr. horbal in his favor and under the transportation code, that decision takes effect on the date the notice was served in. so to somehow redo that seems to me to be, you know, a violation of the transportation code and beyond that, very

probably a violation of right to due process of law and to equal protections of the laws and so for that reason alone, i believe you should grant the appeal. thank you. >> director: thank you. is there any other public comment on this item? i understand mr. dan heinz, did you want to provide public comment, phone number in 0577? press star 6 to unmute yourself. mr. dan heinz. try pressing star 6. okay. i'm not seeing a response of

that this caller wanted to provide public comment. so, mr. heinz? one last try. press star 6 if you would like to speak. >> possibly star 9 would work. >> director: star 9. do you want to try star 9? i thought that was just for raising your hand. do you want to try that? mr. heinz? . we could also call him. it's just because i have this name and phone number in advance. i don't want to prevent someone from providing public comment for technical reasons. [please stand by]

>> thank you allfor me today. my name is dan hynes and i'm the president of national cab

company and have been since 2004 . and i want to try to give sort of context focusing on this agreement because i think that's critical to what we're talking about here. the city's decision to make driving and eligibility requirements created the drive and drop policy where internment from the industry often threaten medallions with loss of driving income but also with the loss of their medallion income leaving them often with social security and even that less than available. drivers over the years often drove with skills and went so far as to create driving history. cab companies who were dependent on medallions for liability were under pressure to accommodate these strategies

even though they carry goods for the cab companies as wellas the public and medallion holders themselves . in this context national cab having a number of elderly and medallion holders filed a lawsuit in federal court . challenging the city's right to take medallions from owners who were no longer able to fulfill the driving requirement. the district ruled in the city'sfavor and cab with support from all the major cab companies the old .in this context plaintiffs were with the city to resolve the disability issue and also permit elderly medallion holders to exit for financial compensation for the surrender of their medallions . with the credit union as lender and the gaping financial shortfall from the 2008

recession as a financial incentive, stakeholders including the city crafted the medallion surrenderprogram . the terms of this medallion surrender program were accepted by sloan and the city as defendant and by the appeals board as a resolution of the lawsuit. the surrender program granted disabled medallion holders of the three years exemption for a disability and allowed the disabled and elderly the option to surrender your medallions for $200,000 . >> could you hold on one second because you're running out of time. i'm going to ask the question, could you explain that so you can carry on with your time. >> caller: the city benefited by receiving revenues from both surrendering, surrendered medallions and also newly issued medallions.

in a real sense that tens of millions of dollars of revenue the program generated was critical to the city for bringing the city out of its financial hole . the industry and city benefited from creating an exit for medallion holders and importantly and conversely an opportunity for those wishing to become careerdrivers to invest in the industry . it should be noted the set price of $250,000 was considered well below market by the based on the revenue that an italian holders received. and i'm happy to answer any further questions but thankyou for this opportunity . >> president: anyfurther public comment on this item ? pleaseraise your hand . i do not see any further publi comment so we will move on to remodel . we will move on to mister horbal. you havethree minutes .

or mister mcnutt are if you're speaking for him please go ahead. >> thank you. i could take an elephant the chest right now. in this tom: letter i personally think the deputy attorney: add professional misconduct when he did this but i think it's numbereight , i circled what owen advised the taxi commissioners about trying to make a requirement. he puts in the first line prop k requires permit holders amendment 3.and then the word invades. that indicates missing languag . one word is missing and it's the word to. commissioners would have looked at the law that says no permit

shall be issued unless the person applying for the permit shall declare under penalty of perjury his or her intention actively and personally to engage in permits to drivers under any 24 hour period.he tricked the commissioners into believing the law read that you had a mandatoryrequirement to never stop driving . it does not say that . it says leave the applicant swears the intention so i'd like to quickly go to what happened in 1988 when this got codified with the municipal police code and i'm holding up one of the documents i sent in . it says that the permits can be revoked for good cause and it says subsection 1, the permit

fee ceased to be a full-time driver and later says it's mandatory, not discretionary to revoke or suspend when someone quits driving. that is an absolute miss codification. that's changing the law. i wasn't active then but swearing the intention to drive means you have toconsider the intention . it's a funny way to write along . mister owen tricked these commissioners into believing it's not a law. he's lying,basically this is an outrage . there's somethingelse i was going to say. i'm going to lose it here . mister emery made some comments and certainly there's plenary authority clause that the city can't change laws or ignore ada and that is in where the city

talks aboutcontemplating that people would turn in their medallions . one of the documents i think it's summary 12, the receiver of the medallion, these people were 75 years old when theygot the medallion how are they going to turn it in ? >> president: we have a question from president honda and vice president swig. >> president: is that a real behind you? >> these the rack by the way. looks horrible. he appreciates the work i'm doing butthat's a stuffed animal . he's a virtual cat and he looks like mybeloved apollo . >> president: vice president swig hasa question for you .

>> vice president: i think this whole thing is verydifficult and i'm saddened that mister horbal is in this terrible situation . but the thing that's bothering me is these rules and regulations seem to whether we like them or not, and you can tell i don't like them very much, kind of tied the permit holder it seems in knotsbecause i want to ask you a question . let's say you're able to hold on to this permit if we said tonight we want to let mister horbal hold on to this permit . what is the value of this permit because we've heard testimony from the city that

the permit can't be sold. it's a permit and that's why i purposely asked the question with a reference to getting a permit . i got a permit, i can't turn around and sell it to somebody else . and in this case when i asked this question, can you sell the permit and the answer from the city was unfortunately no. so okay, tonightis mister horbal maintains the permit , what good is it? because unfortunately he can't drive anymore and the city says you can't sell the permit so what value does it haveother than the fact that you get to tie up a permit ? >> that's fair but he committed his entire life to getting this permit so again, if uber starts

tanking and the value comesback , for his career commitment he will get some money per month, might be 300, 500,value is coming back . not being able to sell is a technicality . as he pointed out, the city became an intermediary in the process because we don't have a property right and this surrender for consideration which is compensation of $200,000 , that's tantamount to selling . this was, when this situation came up, the number of interested buyers lately outweighed the number of sellers and it's because we purposely set the medallion as being worth $250,000 whereas on the open market it would have sold for 400,000. a lot of us did not want people buying these because they get

underwater with an artificial bubble in new york and we want them to make enough money to pay back their loans and have extra money for having bought it but unfortunately uber and lyft came flooding in and took away almost all the value. this is a surrender for $200,000, it's like selling it to the city technically as an intermediary. >> president: thank you. >> thank you, we will now hear from the sfmta. mister emery, you have 3 minutes. >> he's not here to defend himself against theaccusation . he's the most scrupulous, careful lawyer that i know. he's retired from the city attorney's office so i hopethat

accusation doesn't carry any weight here . the question about whether prop k imposed a driving requirements, whether the current regulations, of course the courts have already decided they do and the mta submitted those twocases . both of those issues are directly and carefully analyze by the courts. so there's no ada compliance issue with mtas regulation. and the driving requirements is valid. consistent with prop k and doesn't even have to be consistent because of the authority that we've already discussed today and prop a. that's all i have to say. >> are youfinished with your time ?

>> briefly if my idea is that stillokay . this effort took several years to get before you. now, numerous notices and a good portion of those medallion holders secure their issueso all the issues , others turn their head and others appealed and that's why we are here today. but the transportation code dictates the rules governing taxis. 1303 is a post came italian and the holder of that medallion needs tohave a name card, that's why we're here . if i, if this medallion is renewed, that does not serve the issue that mister horbal is out of code. code requires him to have.

[inaudible]. simply put the code dictates this medallion is out of compliance . >> thank you, we have questions from commissioner lazarus, commissioner lopez and commissioner chang . commissioner lopez. >> i believe i'm directing this to mister emery although i'm not sure if it's a legal question but i don't understand how you could have sort of a business based on an intention. in other words saying that you intend to drive and then never drive, how would that work ? >> that's one of the words in section 10 to a. prop k as a whole is based on that intention. prop k as a whole as analyzed by the cases i keep referring to is it self-imposed on

medallion holders. i agreewith you 100 percent, you can'tbuild a business on intentions . >> thank you . >> commissioner lopez. >> for mister crenna, can you tell us if the agency, you just referenced a number of different types of enforcement outcomes. prominent holders being identified for enforcement, either revenue or issueswith their permit or a feeling or surrendering a permit . does the agency keep statistics or any type of data on the types of enforcement that are pursued? specifically with respect to this type of medallion on the grounds of not having a valid pdl?

>> yes i do butunfortunately i don't have that handy . but we are tracking the whole efforts. it was originally mailed at the endof september . 2019 i think it is so they were mailed out in a inverted funnel so there were many letters sent out. [inaudible] >> i think we lost a bit of your sound there. >> to the best of my recollection there were about 300... >> your audio is not working, sir. do you have another light? >> i don't, i'm sorry. >> could you repeat that again?

>> to the best of my recollection there were 250 notices and about 50... [inaudible] 200 medallion insider secured. >> is it me or is it cutting out. >> it keeps cutting out. >> he can take off his headset and mute his computer. >> does that work? >> that's better. >> perhaps it's the jack. now you are muted. you are muted now. >> i thought itwas me getting old . >> i apologize. new world. i can turn my volume so i can hear you. there were between 250 and 300 of these notices sent out and also between 45 and 50appeals that were heard . >> and to the best of your knowledge, the 250 notices,

that sounds like if we were to hearyou correctly , that was enforcement, those were enforcement notices that were sent in calendar 2020? >> let me pull up the letter. i can say they were all sent within a day or two . >> i'm trying to understand how far back would that type of enforcement activity go. is it something that goes back decades that we would have to potentially have data on or is that a very recent kind of type of enforcement activity that's been participated in bythe agency? >> it's a recenteffort by me and it's upon renewal .once

the permit is renewed , then you'd have torevoke. this was done as part of the removal process . >> but for the appellant, if i remember correctly is enforcement activity began several years ago. >> i don't understand what you mean. >> i may be wrong but doesn't his, didn't his initial enforcement activity began in 2017 or something? >> i got hired in 2017. >> i totally understand and know you've recently joined. i just joined this body so i'm sympathetic to that but does the agency keep track of those types of enforcement metrics back to before your time? >> i believe there would be old

medallion files but also the body thathandles those units are available online . my understanding is prior to this it was run similar to this through some different era if you will. similarly composed body and even in a similar way. there are minutes are still available online, i don't have exact numbers but the taxi commission has spent time enforcing a driving requirements and amongst other compliances. >> that's it for me, thank you. >> commissioner chang. >> thank you. i think it would be helpful to hear from either mister connor or mister emery to speak a little bit about the

enforcement program more generally. i understand your enforcing upon the request of renewal but i think what's tricky and challenging for the commission and this body is that there's been stated empathy for the past industry, especially with all of what has occurred in recent years with the emcs or lyft and uber and then you hear about these stories and a lot of public comment regarding the livelihoods and the commitment thatdrivers have made .but there's no reprieve or relief from this. and again, we heard that if the permitis revoked , and i don't fully know the details but. there's no monetary value to it but on the flipside, if the permit is revoked and it's

retained, can you share what harm there would be for someone like mister horbal to get his permit even if it's for just good conscience to uphold honor and just that comfort of holding that permit. that's my first question and i have a couple follow-upsafter that . >> it would be in direct violation. [inaudible] it would be a violation of theterms of the permit . best example i can think of is if i'm putting on a concert and someone says you have to have permit to sell alcohol and i sell alcohol i'm in violation of the permit . and i should also add it is a core elementof the permit .

one of the central requirement , one of the central reasons whywas granted . >> one of the callers stated their ability to file for disability and for each disability that could last three years. is that true and if that is true with that apply to mister horbal? >> that is true, there's a board policy that goes to what you would refer to as medical modifications but what we're hearing today is based on the fact mister horbal does nothave the apartment so although they are related , code requires mister horbal to move from and policy would allow him to keep on driving with temporary disability. that policy also says it only

applies to temporary, those who are permanentlydisabled are not eligible . . the mta board resolution 09 18. >> thank you. >> that piece that he is talking about. >> commissioner chang, did you want them to clarify? please go ahead mister emery. >> that question of the mta board resolution is quoted on page 6 of the mta brief, that's all i was going to say. >> thank you. i believe president honda, did you have a question or no? thank you so commissioners this matter is submitted. >> president: which commissionerwould like to start

? don't all jump inat one time . >> i'll go ahead. or did you raise your hand? can't hear you. >> i'm not surei want to . i think we're all feeling at least i am feeling the unfortunate nature of this situation where an individual has dedicated many many decades to his craft and has the anticipation that and expectation that there will be something at the end of the rainbow and then unfortunately is told the pot of gold at the end of therainbow is featuring

only an empty pot . andthat's really an unfortunate thing .and we are all incredibly sympathetic and probably saddened by that as we all are. and, but we are strapped with the same old thing which is there is some clear rules it seems and i look forward to ... that's my interpretation that it's a permit. the permit is terms and conditions . the conditions can no longer be upheld by the permittee. the permit holder. and as a result, the accountability is that the permit is no longer valid and must be withdrawn. but that's just the cold hard facts that makes me want to

throw up. but that's where i am and there are a lot of other complexities here related to some ada issues which were not on trial here today or the lack thereof but there are those of them that have been heard and tried and that resolution has been made on that issue but i think keeping it very clear, the permitwas issued . the permit has unfortunately not been able to be upheld and now the permit is being withdrawn because of the terms and conditions of the permit and unfortunately it involves somebody's life and hardship and that's really sad but that's my point of view. >> president: commissioner lazarus.

>> i've come to the same conclusion run reluctantly aswe all would be . in the case of what for us i don't think there's anyoption but to deny the appeal . >> i am on the other side of this. i think that we have an aging taxidriver association as we now heard from the people that were before us and i think although there's rules and regulations that are in regard forthem to drive or not to drive , it flies in the face of disability. do i want somebody that's continuallygoing to drive whether or not they're able to because they're trying to maintain their license ? no, i wouldn't want my daughter or wife or son in a vehiclewith someone who's forced to work because they're going to lose their likelihood after 40 years

. i think it's suspect to me that there have been no cases before that i've heard and that the city attorneys for the sfmta representatives could not speak of anything specific but yet there are pending cases before us. >>. [please stand by]

>> president: i understand if we don't have the data at our finger tips today and i'll go back to say and the agency's position i think was really well articulated by mr. emery and mr. crana, but one area where the analogy to a speeding ticket, you know just doesn't sit well with me is, you know, speeding ticket doesn't often result in a disabled senior losing their livelihood and, you know, if we have, you know, if there's any, you know, chance of selective enforcement

whether that's due to whatever officer, you know happens to interact with the permit holder on that given day, you know, whether it's some external kind of, you know impetus, i think the public speakers are pointing towards, i think that should be something that we should examine more closely, i think. if we're going to operate within the four corners of the transportation code. in one of these if i had the abilities to balance equities here or i would continue to

balance the case, but the transportation code doesn't give that out, right. but i think if this is the denovo review, i think we do and i think we at least have the ability to continue the matter and until we have a better, clearer picture of what the enforcement activity has been. and it also sounds like this pending case, while it may not be squarely on point, it may also create some liquidity opportunities potentially for folks in the appellant's position. that may completely remove the necessity of even here cases like this if those folks suddenly have the ability to. and, i understand the technical question of it's a permit and it can't be sold. you know, at the end of the

day, you know, i think for all intensive purposes, people understand this as a permit whether it can't be legally sold or not. at the end of the day, you end up with money in your pocket when you exchange it and it's part of a program which the city created, which the agency created. so i think in most peoples' minds including i'm sure in most of the permit holder's minds, they understand that as a path to liquidity as a patch of sale or compensation and, if that, if the gears of that machine are clogged up and potentially could open up with this pending case, i think that's another factor at least in my mind for continuing, you know, so that we can get some data on how enforcement's been carried out and see if there's

another potential out here. >> thank you. i believe commissioner lazarus had her hand up first and then commissioner chang. >> commissioner: i don't believe that what may or may not be happening in any other case is necessarily pertinent here. we have a set of facts in front of us involving this particular individual and that's what we're being asked to rule on and i don't know what kind of data we could gather that would indicate any different outcome potentially given the law, the regulations, and what to me is applicable to this decision. so i don't -- i appreciate that perspective, but i cannot subscribe to that particular approach and if -- i don't know whether it's worth asking mr. gibner to weigh in on that in terms of the parameters for this, but if it would be

helpful, i'm fine with that. >> president: commissioner chang and vice president swig. >> commissioner: thank you. my sentiment aligns very closely with. >> commissioner: lazarus. to analyze the case squarely on the four corners of the transportation code, it is very clear ask and it does very much feel like stripping a sense of stability and livelihood away from an individual and i heard that there's no pending code

amendment that you're aware of and i am also -- i acknowledge that it's a bigger picture of how m.t.a. is suggesting its equity. it's actually in consideration of the bigger ride share economy and its implications on taxi drivers more specifically and, for that reason, i think i'm equally struggling with making a decision based on this very black and white narrow case. and i wonder if there is room to explore kind of layering on some sort of equity

consideration. i know that outside of what this board has the ability to do but that's kind of my sentiment. >> president: vice president swig. >> commissioner: i wouldn't mind postponing a decision tonight to having one of your first questions answered, darryl, which was to council when you said okay. well, in the past we did this and there was no answer. and, so, i don't like -- i'm sure counsel is right or is basing it on his understanding of fact, but i think that would be interesting to know about a past procedure and precedent and stuff like that. i'd like to know that that

history and the whole accountability piece. i think that would be very important from my education at least on being able to move forward in case we have another case like this and so i wouldn't mind kicking the can down the road. but, again, i will raise the issue so what? so what? there's no prescription for equity here, it's a permit and if we find for the appellant, the appellant winds and the appellant wins what? the appellant cannot sell this permit, that has become very clear. so we can rise and show we are

synthetic it will make us feel god, but it won't do any good. i just want to put that forward and i really want to hear, i like that extra piece of information. what i conjecture and maybe if we are going to kick this one to a later date, i'd like -- i'd like counsel also while they're doing that history to clarify something and i want to see this elegantly instead of in an accusatory fashion. i smell the smell of benign neglect and i smell that what we have is a relatively new attorney on the case, and sheriff in town who's done his

job and is holding permit holders accountable for the terms and conditions of their permits whereas potentially and this is what i smell his predecessor didn't do such a good job. so here you have somebody who is trying to do their job and that's why we're here today and it's just very possible that we'll find that the predecessor didn't do the job so well. so maybe the city attorney wants to keep that in mind too while they're doing the research. i was -- there have been a couple analogies. the 280 freeway analogy with speeding and then the other side said, well, it's like, everybody used the same pass over a bunch of years over somebody's property and so

right there, they created an easement and so the next owner of the property, they can't claim an easement. they can't claim there's no easement because there's been a regular use of this path. that doesn't create an easement and it's just that an owner held that -- the new owner said, "no. you can't come on my property." so let's keep our analogies a little bit more -- it's just watch out for our analogies, i think. and i'm the worst at it. thank you. >> president: okay. so i know commissioner lopez has his hand up. it looks like with my vote, we have three votes to continue and it looks like vice president swig will continue as well. but i am thinking of commissioner lazarus. we have to be very specific on what we are continuing it for and what we can actually gain from continuing this.

i personally am not supportive of the revocation from what was presented today and from what orally and written. so, i'm sorry. go ahead commissioner lopez. you can your hand up. >> commissioner: yeah. thank you. you know, i'm with vice president swig on the interest for that underlying data. i'd say in my mind, it's relevant particularly since it sounds like we may have more cases like this coming up, but it's relevant in the sense that it'd be helpful to understand, you know, what size of the enforcement kind of men these types of cases, you know, will have, right. are a lot of these cases ending

up with a situation where disabled seniors are having to surrender permits. i think that, you know, that that could potentially color our thinking in these types of matters and it sounds like we haven't had many, you know, at least in the recent memory of other commissioners. so i think it could be helpful contacts for these types of cases if we're going to have more of them. for me, it's helpful in this one in particular. i think to that end, you know, for any motion to continue, i would ask that the agency -- >> president: hold on one second. would you like to make your first motion as a commissioner on the board of appeals to continue this? >> commissioner: let's do it. i'll do that. before i do. i'll ask mr. crana if we can just get some input on how long

do you think it would take to, you know, compile this type of information and i think the information that i'm seeking like i said has to do with at least for the instant case here, you know, for this type of permit, you know, being denied on this basis, on the lack of the c.d.l., you know, what are the numbers on that pattern as compared to other general enforcement activity and, you know, it'd be great to go back to even to the beginning of as far back as we can if possible to the beginning of the creation of this permit with that c.d.l. requirement. >> i will have to research paper files since [inaudible] when the taxi commission, regulated taxis prior to 2009 when m.t.a. was -- my

assumption would be when the medallion was revoked. that paper file was placed in storage and so it's not anywhere in my files. the agency did not exist prior to 2009. so that won't involve frankly -- unless i can find some sort of other record of it. it will likely involve -- so. >> commissioner: so basically the question is how long would that take you to acquire those files? because if we are going to continue, you know, we'll have to continue so that you're able to comply the information that this board is requesting. >> at the very least, i would say at least 30 days. >> president: okay. so how about 60 days? okay. does that satisfy your question, commissioner lopez? >> commissioner: it does. i think, with that, i move to continue --

>> commissioner: can i interrupt you just one second. i'm sorry, i'm going to support your motion, but i just need that -- before we get ourselves in a mucky in the weeds as you say, i need to ask our city attorney something. and who is our city attorney today? >> director: for this matter, it's zack pourianda. >> commissioner: okay. so zack, we are anticipating, we've heard testimony today, a rumor that we're going to have another case that is similar to this and they rely on the same data that the -- your associate city attorney representing the city in this case is going out to research. i wouldn't want a case that put us in the same direction to

come up without this data available. this is the nature and reason why we are asking for this to form a decision until later. so what do we do about that? can we look down the agenda, future agendas and look for cases like this or that cases that may require the same information and proactively postpone those? what do we do? or else we're going to -- if we don't, then those cases, i don't know that there are or are not cases. i just heard a rumor testimony that those cases are coming. but if those cases came in front of us and we need the same information, it's sillily because we would have to postpone a decision on those

cases too for the same reason. so that's why i see that we're a little in the swamp eventually. >> president: your recommendation counselor. >> i would say it falls within the jurisdiction supporting rules discussing the rescheduling. i think it would be up to the president working with the executive director to determine which cases can be continued on an administrative basis. >> president: okay. >> commissioner: so the recommendation therefore before my fellow commissioner made which i'm going to to support would be the advisory that if, in fact, this anticipated motion does pass, that the executive director and the president should be mindful of any forthcoming cases that may be required to share this

forthcoming information and therefore be postponed after we reach resolution upon this case or at least hear the information that we are requesting on this specific case. okay? >> commissioner, apologies. i just want to interject one more time. you can also ask the parties to consent to that. that way, they may be willing to consent if that information would be relevant to their appeal. so there's that step you can take as well. >> commissioner: okay. what would -- i don't have an opinion one way or the other. i'd love to get you to give me some recommended direction, please, on behalf of the board for the board. >> again, it's an administrative decision. so before the authority to continue those cases. >> commissioner: so we don't have to get into discussion and

waste time. just, you know, as we move forward, this process to hear the recommendation from my fellow commissioner, i would like to have the executive director and the president consider the ramifications of this motion on immediately future cases. thank you. >> director: vice president, we do have a case scheduled for september 22nd that is a similar case, so -- >> commissioner: so therefore, it's going to take 30 days, 60 days between 30 and 60 days to gather this information -- >> president: i get what you're saying, we should postpone the hearing coming up? >> commissioner: exactly. >> president: well i get fearful. i don't want to say the wrong thing. i was like what is he. i get it now.

so, yeah. the executive director is always amazing and i'm sure she will consider this and to my fellow board members. i see the deputy city attorney with his hand up. please go ahead, deputy city attorney. >> just one more suggestion. anything that you order one of the parties to file, the other party should have an opportunity to respond just in terms of due process. >> president: yes. we're aware of that. thank you very much for all your advice and council, sir. i think what's come before us as vice president swig mentioned, you know, his predecessor, i think it was his predecessor's predecessor's predecessor. i think if we are going forward and have similar cases before us i think it would be good that we get that information before us. okay. go ahead. sorry. >> second that motion. >> director: can we clarify --

go ahead commissioner chang. >> commissioner: i was just going to. so i think what i heard the deputy city attorney recommend is that we ask the poets, the appellant if the proposed continuance is something they'd be okay with if i understood him correctly? >> president: i didn't get that, but that doesn't make sense. so on that. >> commissioner: did i understand you, correctly, mr. portianda. >> you can do that for this case as well as the cases that are up coming. >> commissioner: got it. >> president: so i'll ask another question unless the executive director would like to speak first. >> director: i just want clarification on the information you're seeking. >> president: i guess we're going to ask mr. horbal and his representative mr. mark moredo. if what we're representing goes

through, are you willing to come back in 60 days? is that acceptable or would you like us to render a decision this evening? >> that's fine with me and at the same time, i happen to be the agent in three weeks for james portasis. julie can arrange that. >> director: that's very convenient. thank you. >> president: and do we need mr. horbal's approval. i know he had some technical challenges getting on initially. >> director: mr. merdo is his agent. >> yeah. he's fine with that. >> president: then we will make it very clear. >> director: let's clarify a date as well. since we're going to have to. you said 60 days, so november 17th i know it's a little more than 60 days, but we have a cleared calendar. we're very busy. >> and, we'll be in person at

that point i believe. >> knock on wood. >> director: we shall see. >> president: we get to see everybody. so commissioner lopez, you want to go ahead with your first motion. >> commissioner: yeah. before i do, i guess i would ask, it seems like a bit of a tailored, you know, research report for the purposes of these decisions and i know i outlined what would be helpful to me, but i just wanted to make sure that if any other commissioner had, you know, other data points that would, you know, also be helpful that those get included in this request. >> president: i think you'd like to make your motion and if anybody will add onto it, we genuinely make communal motions on the spot. start with yours, sir. >> commissioner: all right. so i'll move that the current matter gets continued to the november 17th hearing to give the agency time to put together the materials that we discussed related to enforcement

specifically with respect to this type of medallion being denied on this grounds compared to the numbers of other enforcement actions preferably, you know, back to the creation of this type of medallion, but, you know, at least as far as electronic records would allow. >> president: anyone else? >> commissioner: is that sufficient? i think that's fine. i just want any actions that were done for this specific reason of someone that's unable to drive because of their disability since we have similar cases coming through. so hopefully we won't have to do this on the following cases. >> director: so it's not necessarily because of their disability. it may be because they didn't have a driver's license or an a-card do you want to clarify. >> president: oh, yeah because they didn't have their a-card or c.d.l.

>> commissioner: that's what i heard him say, yeah. >> president: thank you "v.p." >> director: okay. so we have a motion from commissioner lopez to continue this matter to for the regarding the number of medallions that were not renewed because the medallion holder did not have a california driver's license or an a-card and you wanted information relative to other enforcement actions as you said, correct, commissioner lopez. >> commissioner: that's right. >> director: okay. medallions have been going back prior to 1978. do you want to set within the last 15 years or to the best of their ability? >> commissioner: yeah. i think to the best of their ability --

>> president: sorry to interrupt. since prop k was mentioned. to the best of their ability. >> director: prop k was issued in 1978. >> president: so be it. 1978. >> director: just enforcement actions that were initiated. >> president: correct because the department has stated that there's been prior enforcements that are similar to this, so we'd like to see where those enforcements were. >> director: okay. and can we clarify too because you said that medallions were denied or not renewed, but what about enforcement actions for revocation. in this case, this came up because they at the renewal time and they failed to renew which can amount to a revocation. there are other instances where there's enforcement where they affirmatively go out to revoke medallions. did you want that data as well. >> president: i think it's just revocation to drivers that

are unable to fulfill their responsibilities as a medallion holder. is that sufficient? >> director: okay. >> i think it should include both revocation and lack of renewal. >> president: okay. >> director: and, based on not having a california driver's license or an a-card. >> president: right. >> director: okay. and other enforcement actions. i'm just trying to make it clear for them so they know what to get. >> commissioner: yeah. i think we want specific numbers on, you know, the lack of the a-card or the c.d.l. as compared to other enforcement actions for revocation or lack of renewal. >> director: okay. so -- >> commissioner: and, then in terms of going back. i also don't want them to boil the ocean. sorry. i'm sensitive to the you know, prop k date. so i would say, you know,

reasonable efforts going at least as far back as electronic records allow. >> director: okay. okay. but you would like -- okay. you'd like them to go back to 1978, you understand there are some limitations, but at a minimum, they need to go back to when records became electronic. >> commissioner: right. >> director: okay. so on commissioner lopez's motion to continue this item to november 17th for the reasons he just enumerated, commissioner lazarus, [roll call] okay. so this motion carries 4-1 and the matter's continued to november 17th. >> and ms. rosenburg, i will

not be here on november 17th. my plan is not to be here. >> director: okay. >> you know, if it's important to my fellow commissioners, sorry. i just looked at that. so if it's important to my fellow commissioners, there might be an alternative date. i don't care one way or the other. i know they can handle it wonderfully well. i just want to point that out so i'm not accused of ditching them. >> president: i just want to go with you, but other than that, i think we're okay to be honest. >> director: okay. >> president: you know, when this is set, does any of the commissioners need a 10-minute break? >> commissioner: yes please. >> president: okay. perfect. >> director: okay. thank you everyone. we're going to take a 10-minute break and we truly appreciate

>> director: september 1st, 2021, meeting. 345 fuloveton i3 lp appealing the denial july 14th, 2021, of an application for an exposure variance. dwelling units to an existing 28-unit building. one of the a.d.u.s is proposed at the front of the building and one is proposed at the rear of the building with the glazing facing onto the rear yard and two of the proposed a.d.u.s are propose with glazing facing only an interior light court. the zoning administrator is allowed to grant a waiver for reduced exposure for an adu of qualifying spacen open area less than 245 square feet in size.

two has no horizontal dimension and three is open to the sky with obstruction of instructions outlined in section 140. unit two and unit three are proposed to face a light court that does not meet the standard requirements north reduce requirements for adus. therefore, a variance is requireded. the project does not meeting findings described by planning code section 305c. this is case 2020-010606. >> good evening commissioners. it's nice to see you. it's been awhile. as you know, over the years our

in the last five years since the program was produced, we've created a team of 500 people and we're proud of that. it's not just about quantity, it's about the quality of the units. because we are such frequent fliers, we're very well of the constraints and the challenges in sometimes the literal enforcement in the certain codes. exposure is a challenging bar to meet for many adu projects, but we pride ourselves on achieving it in the vast majority of our projects. we're ambiguous are also aware the building administrator takes these types of projects very seriously. and we've probably brought two of these cases before him and only cases we felt were exceptional and unique circumstances. one was shown not to appeal and when this variance was denied,

we advocated strongly for our client to file an appeal. the literal size of the exposure is a 9' by 25' exact rectangle with no deviation. while the two yunts we're proposing and discussing do have an interior light pole, that light pole is 50' long. there are two bay obstructions above that stick out the length of a ruler, 12" and section 140 of the planning code are not permitted deemed obstruction. only chimneys and fire escapes are considered approvable obstructions. the exposure code whether the courtyard is large in landscape and space and it doesn't take into consideration things like

tall ceilings which these have. and it doesn't take into consideration where the obstruction occurs and, again, in our case that bay extension is just 12" and occurs almost 13' i believe above the courtyard we're creating. it also doesn't take into consideration what's on the adjacent property and in our case, the light court we have is adjacent to the property. the administrator does have the ability to grant administrate eve waivers in case the deviation is less than 10% which in our case we're far below. these little bays stick out and sections of the bays that impacts those two units and, also, you know, when considering adus it is within his jurisdiction and authority to grant the variant if there will be a reduction. in our case, we would lose one unit and end up with two large bedroom units which would not

be affordable for the adu program. in addition to that, i will just add, let me just see, the building code does require, doesn't have certain requirements for light and ventilation. it's not the same of the planning code. the building code and the california code and the san francisco building code would allow a courtyard of 6' by 15' and, again, we have 9' by 50' and as well increased by the mirrored property on the opposite side. so we strongly hope that you'll support our project. i believe you all have our brief which includes the diagrams and images of this. i'm happy to share those if you'd like, but in the nature of time and the length of the evening that we're all facing, i think i'll just stop there and i'm open for any questions. >> director: thank you. we have a question from president honda. >> president honda: , i just have a quick question. so in your brief, i'm looking

at the picture of the light well and looking at the front of the property, evidently, they have the same color scheme and windows. are both properties owned by the same landowner? >> yes, they are. >> president honda: thank you. that was my question. >> director: okay. thank you. we will now hear from the planning department. >> thank you. good evening. the subject property of 345 fulton street is located with the m.t.c.3 zoning district. it's presently developed with a five story apartment building containing 28 dwelling units constructed in 1926. the lot is approximately 39' wide and 137.5' deep for a little more than 5,300 square feet of lot area. the proposal is to add a total of four adus to the subject property however only two are subject to the variant that is

before you on appeal. the other four units, unit one faces the rear yard and it would be ehling because it's not less than 9' in any direction and it's open for that area so units two and three are in the center of the building and only face on to the courtyard. it is noted that the courtyard wall to the main wall of that level to the side property line is about 9'1" and it otherwise meets the area requirements, however, it is above, it does not open to sky above because of the bay windows which

diminished the clearance of 3.8". this is not eligible under planning code section 305. it does state that less than 10% from the requirement. the zoning administrator may then continue to administrate the variants to another hearing. that's the standard code requirement. in this case, in order to have code compliant exposure, you generally need to face on to a code compliant rear yard which in this case would be 25% or a 35' depth which this does not have or a 25 by 25 area of a courtyard depending on the height of the building it will increase to 30' to 35' and lastly facing on to a public right of way or street at 25' width which it doesn't. so that's the standard we're looking at when we're viewing

the 10% deviation. the planning code does allowed for waiver from the standards to be granted reducing it down to what was already mentioned and the instructions that are here would make it ineligible for that waiver. the proposal is not compliant, so therefore the variances required and to think this is not the first of the appeals the board has heard. most recently last year hearing one for a similar appeal for 2727 natoma. the zoning has been fairly consistent in denying these requests if you take the exposure requirements very seriously. the exposure requirements have been reduced actually twice for adus. the initial adu provisions

reduced the original requirement to 15' by 15' in open area and it was allowed to greater flexibility of the current standards because this whittling away. the intent was not to have standards for exposure. that could have been something that was added to the code, but that wasn't the case. so you have to meet all five findings in order to grab the variants for this requirement. and i know that it's close, but this is already a reduced requirement from what a new standard unit would have to have exposure to a much larger area than what is proposed here. and, you know, we do appreciate the work that this project sponsor architect has done on past adus and they're very well versed in how to make those unit haves all safe quality units, but we feel this is just a step too far for the exposure

requirements. i believe that there was at least one neighbor or i think even a tenant of the building and opposition to the project that expressed concerns at the hearing, that they had some concerns with noise during and after construction i think they intended to participate tonight, but were unable to stay to this hour. in the past, we look at what is development of a site. this is an existing lot that has 28 deadly weaponing units. two of those can be approved under current code requirements. the variance is sought for those two additional units beyond that. i know we think the 30 dwelling units is still an appropriate development for this site and so it didn't meet the findings outlined in the variance, we didn't find there was a

hardship here which this is an essential lot that's essentially developed that the exposure requirements have already been significantly reduced even though it's close, it's facing onto the flight well, the ground, the five-story building and didn't find that met the hardship requirement in terms of, you know, kind of comparable standards. you know, everyone else has to meet the code requirements and been consistent and denying similar requests and i think the board has maybe been a bit mixed in terms of hearing these cases. i think the last case upheld the denial. i can't recall how the board may have acted on others, but as generally has and shares those concerns regarding exposure. let's see. you know, appreciate the appellant's brief in the matter, but i don't think they really went into detail of the

findings. >> 30 seconds. >> this is the hearing on the variance. as outlined in our decision letter, we felt that the five findings have not been met. so, with that, i am available for questions. thank you. >> director: thank you. we have a question from vice president swig. vice president swig. >> vice president: so there are two units in question regards to the variant. is one of the units was closer than the other one as to closer to the line of of being variance acceptable versus the other or are they both in your mind equal? >> they were both denied. i don't think there was any indication that one was better than the other. the fact they're both relying on the same area for exposure and that wasn't acceptable.

vice president swig vice president swig. >> unit three is 633 square feet. there was a smaller unit at the front which is not subject to the variant. that is 371 square feet. >> vice president: and that's not in question tonight? >> correct. >> vice president: okay. my biggest concern, the highlight of my show at the moment is that it's precedence setting and you know i'm a stickler on that. i don't want to -- i don't want to set a precedence tonight that will come back to haunt us next week or the following week

or the following week. and also, the five findings, i didn't see there were as close as you indicate they were as acceptability to the variants. but more back to the exception piece and the deviation from what is acceptable as far as the planning commission. i'm sorry, the planning. where are the -- where are we subjecting the planning department to risk as far as setting a precedence with these two units? >> the board is hearing this. this would be the board's decision on the variance and you need the facts and findings the board would make on this. the concern, the deputy

administrator has taken the approach that we've already reduced this multiple times and even if it's kind of close like this, it's not going to be appropriate. so i think, you may then have more appeals to the board about similar cases assuming there's similar determinations and just to make sure i may have misspoken earlier, we agree the findings aren't close and none of the findings have been met. that's the department's decision is that none of the findings have been met those two proposed adus don't satisfy the exposure requirement. there's no hardship. none of the five findings justify granting a grant to allow those units to be created with the sub standard exposure. >> vice president: yeah. that was my surprise in that -- i mean, normally when we hear variance, okay, we're missing on one of the five findings or two of the five findings, but this one is 0-5 as far as

getting one of the five findings in this case. i mean, you know, you've got to reverse five separate points of view right now with regard to the planning department, but i want to -- you're dancing on me a little bit so i can be accusatory. but i really want to understand what in these units would come back to haunt us specifically? don't give me a macro, please. give me a specific. what do you feel that if we move these forward that next week, the week after, the week after, somebody would come back and say, hey, you ruled this on this case, so where is the most, or the most potentially explosive or the one we're

going to be held accountable for and we're going to regret it forever and ever piece of this item? >> you know, variances are discretionary authorizations. they're different from interpretations of the code. so providing that your determination was just that you disagree and you think that the five findings have been met, it doesn't necessarily establish a precedence. the zoning administrator would still have the discretion to deny variances in the future and maybe then those applicants are likely to appeal to the board of appeals if they believe that the board of appeals is going to get them a more favorable reading than the zoning administrator. i mean, i think that the zoning administrator would still have the ability to consider these on the case by case basis and continue to deny them for the reasons that they can make -- you know, if the findings aren't met, so it doesn't necessarily create a precedence for that. the board thought this was

okay. why doesn't the zoning administrator feel that way? why don't we change that? that's my opinion of kind of where -- what the outcome would be, i guess. >> vice president: that's a very good response. thank you very much. >> director: thank you. is there any public comment on this -- commissioner chang, did you have a question for the zoning administrator? or the planning department? deputy zoning administrator? >> commissioner chang: yeah. just a quick one. is there something that the zoning administrator or staff has recommended to the applicant to avoid the variance all together? it looks like it's existing so it seems like a hard condition to comply with, but i'm just curious if there are, you know, things on the table, low hanging fruit, so to speak? >> i don't think there's any straight forward and i don't know that the department has

recommended they remove the bay windows from above, i think our response has just been don't build the adus in this location or they can take some of that area from these adus that they can incorporate into one of the other adus that would be acceptable, i believe. i don't think we've given any feedback because it is kind of a difficult situation to address. >> commissioner chang: thank you. >> director: thank you. is there any public comment on this item? please raise your hand. okay. i don't see any public comment. so we will move on to rebuttal. ms. calhoun, you have three minutes. >> thank you. i will actually do a little here. i also will clarify this is an existing building. it's an existing concrete structure. would impact every single tenant on the building.

here, i'm showing there's a rectangle here in the middle. this is that 9' by 25' section and this is the area that serves this large two bedroom, one bathroom unit with in-unit laundry. these dark areas here you see at the bay windows are the areas that inting on that literal expression by the 9' by 25' area but you can see the courtyard continues much farther out from that. this higher area is the courtyard. next to it is one large one bedroom one bathroom and that's also in question because the bedroom window faces into the courtyard. here's that 9' by 25' area that's literal enforcement of the exposure code and here in yellow is the line of the bay window above. i honestly would not have brought this before you today if i felt that these were going to be sub standard units in any way. in fact, be quite the opposite. i think these will be some of

the best units we've done in the program because of the tall ceilings, the beautiful landscaped ceiling and also the mirror courtyard on the adjacent property which makes this entire area open area over, you know, over 18' wide. so when i understand that we haven't met the hardship concern in the five criteria, but i do feel we have met the standard of the other four criteria in the variance. we have an existing building. we can't really work around the structure. we simply can't create the 9' by 25' section. bay windows above are considered approvable obstructions in normal projects. but they were not incorporated into the code for the reduced exposure area. these are going to have tall ceilings, very large windows. not just windows, but above to

bring in additional light. and we did consider by enlarging the windows that we would draw more light in and, in fact, provide an excess of the glazed area we would need for exposure for these units. i would hang my hat on these. i think these would be amazing. >> 30 seconds. >> i would hate to see the project effectively shelved at this point. going to large three-bedroom units would be a massive reduction for these clients given the expense of these units. for me, i'm a fighter for housing. i feel strongly this is approval and i don't see it setting a negative precedence. they do meet the intent of the code which is high quality units. >> that's time. thank you. >> thank you. >> director: thank you. we have a question from vice president swig. >> vice president: so we have

to do five findings and you're confident about four and you are not confident about the fifth and if you were sitting in my seat, would you please verbalize the five findings in support of the variance. >> sure. the first is exceptional extraordinary circumstances. we do have physical constraints in dealing with adus and we have a lot of square footage here. and when i look at units, i like to think about the quality of space. this is the one we had the existing bay windows above and as scott mentioned, we can't just tear them off in order to meet this literal 9' dimension. exceptional extraordinary circumstances. this one is probably the gray area i would say. literally enforcing we're going to lose two of the four units. other properties of this scale in the city have been able to build significantly more units, but we're just kind of stuck with whatever the existing

footprint of this large building is. it's necessary for preservation and preservation of substantial property rights. income reducing units and the adu program is widespread across the city. we've done them in 100 buildings probably at this point and our client deserves the same opportunity to build the same number of units and really maximize their opportunity here and to provide housing. that it's not going to be material to detrimental public welfare. i don't believe it would be detrimental to the public welfare. there's plenty of natural light for the california building code. far in excess. so i don't see the reduction of quality or detrimental to the public in any way and that it's in harmony with the general purpose and intent of the code. the intent of the exposure code is to provide housing units and we feel strongly that these units do meet that requirement.

>> vice president: thank you. >> yeah. >> director: okay. thank you. of we have a question from president honda. >> president honda: just one quick question, so have you worked with this client before and how many adus have you done for this client? >> yes. i've done a lot of adus for this client. it's hard to count them down. i would say probably -- >> president: 10, 20, 100. >> president: so your body of work is this client. >> 25% i would say, yeah. >> president: okay. thank you. >> director: okay. thank you. we will now hear from the deputy zoning administrator. >> thank you. scott sanchez planning department. to be brief, i think we have argued fully both in the decision letter and in our previous testimony that the five findings have not been met we didn't have a hearing so if the board should find differently, the zoning administrator consistently reviewing these has found that

similar applications are not acceptable and don't comply with -- >> director: mr. sanchez. we can't hear you. >> president: yeah. your connection's not so good. you're doing the robot on me. >> i always sound like a robot. >> my internet connection is unstable. maybe that's not the only thing. sorry. so i don't know i can turn off my video. does that improve the audio at all. >> director: yes. we can hear you. >> all right. apologies for that. again, really saying not much to add, you know, we rely on the variance decision letter and the review of the five findings. those five findings have not been met. this administrator has been consistent in their review of the similar proposals and others have come before the board. with that, i'm available for

questions. thank you. >> director: we have a question from vice president swig. >> vice president: with regards to the five findings and the issue of hardship, i think we kind of get myopic on is this a hardship to the project developer, but can that hardship issue be extended to the public at large because this does add two units of housing to a underproduced stock and so the hardship here is not necessarily on the developer and that looking at the other five findings in the same way, looking away from the developer and looking really at the public at large with regard to hardship and all the and some of the other elements and the other five findings. is that appropriate to do by taking away these units, it would provide a hardship to the public at large? >> well, finding number one

states that there are exceptional or extraordinary circumstances applying to the property involved or to the intended use of the property that did not apply generally to other properties or uses in the same class of districts. so i don't think that the fact that housing would not be provided and acknowledging we're in a housing crisis would be acceptable for finding number one. it's really specific to the property and finding number two as well saying that, you know, because of those exceptional extraordinary circumstances, there's a practical difficulty and necessary hardship not created by or attributed to the applicant or the owner of the property. really, when you get into finding three, it talks about necessary for preservation and enjoyment of the substantial property right and it speaks to how other properties are treated. you know, in this case, we'd

say that this is being they're developed adus as anyone could in a similar property. so we didn't find that wasn't met. the finding number four i think is what you're getting at and it talks about whether the variance, whether granting the variance that will not be materially detrimental to the property improvements in the vicinity. you know, you could argue potentially there that denying an application to housing is not created and finding number five speaks to kind of implications seems to be the general plan, so you can probably make an argument there. i think it's hard for at least three of the findings to take the housing crisis as justification for granting a variance. >> vice president: thank you.

>> yeah. >> director: thank you. commissioners. this matter is submitted. >> president: would anyone like to start first? >> commissioner: i guess i will. so looking at the plan and going through the brief, i mean, they do look like amazing units and just from the pictures that were provided in the brief, this building is -- whoever the landlord is does take very good care of their buildings. unfortunately, when you come before our body, the decision has been made by the department and it would require four of us to be able to change that and there would have to be extenuating circumstances and those are the five findings that are presented for us. unfortunately, i'd love to see these units, they look amazing, but i can't -- i can't say that i would support overturning the department on their decision. i see that commissioner chang had her hand up. our planner.

what would the planner say? >> commissioner chang: i was thinking that it'd be best for deputy zoning administrator sanchez to articulate how the requirements have been reduced multiple times. could you just speak for the public, can you just explain that to everyone? >> certainly. so the exposure requirements go back several decades. i think they were added in the 1960s and i'm sorry i'm keeping my video off to preserve band width. in this case the code where we are would be 39' wide by 34' wide or a public street or right of way that's at least 20' in width which is what they would have presented in front of the property. there's another way we call this inverted courtyard that

increases dependent on the height of the building. when the adu provisions were added in order to incentivize the creation of the housing, a waiver process was put into place for certain code requirements and exposure was one of them. however, it was found that we didn't want to completely exempt projects from exposure. and so a minimum of 15' by 15' open area was required for the original adus. in 2018, kind of accounting to there were some concerns and we had variances coming in for those cases. there was, you know, concerns that that was perhaps too large. we wanted to make it a little bit smaller area to facilitate new adus and so it was reduced again to the 9' clear dimension 225 square feet and open to sky with limited exceptions and so it has been a process.

had the intent been to reduce it further to such that this project could move forward without a variance, then the board of supervisors could have further reduced the requirements or, you know, not set any minimum standards, but this is where we are and the zoning administration takes these reductions very seriously. >> commissioner chang: can you please share what those limited exceptions are? >> so there's fire escapes, and we have in these areas where fire escapes are going to be kind of common features. the chimneys. there are certain other ones that are outlined in planning code section c1416. so they are limited. it does not include bay windows which is the case here that and the bay windows, you know, i agree that, you know, it's a small amount that they encroach, but they do encroach that the strict requirements are not met. >> commissioner chang: thank you.

that's really helpful. >> thanks. >> president: commissioner chang, could you have recited that? i think you could have probably. thank you. >> director: okay. i believe i said the matter's submitted, commissioners? >> president: okay. would anyone else like to chime in or make a motion? >> commissioner chang: i'd like to chime in. i think my sentiment aligns with yours, president honda, in the sense it's a shame that these really well designed, thoughtfully created units may not be able to be created. i think after hearing that explanation from mr. sanchez, i think it is very understandable, the resistance to providing variances because

of the legislation and the following legislations have created. i don't disagree with you. i think they are quality units that, you know, especially with the adjacent lightwell that there could be light in there but there was thoughtful consideration to the legislation and it and there has to kind of be like a line in the sand and for that reason, i think i would be supportive of denying the appeal as well. >> president: would you like to make that motion, commissioner chang? >> commissioner chang: sure. i may lean on our executive director, but i would move to deny the appeal on the basis that the five findings were not met. >> director: okay. so we have a motion from commissioner chang to deny the appeal and uphold the denial of a variant from the basis of the five findings required under

planning code section 305c have not been met. on that motion, [roll call] >> is there a way to share some thoughts before the motion? >> president: go ahead. >> yeah. i'm just wondering, maybe it's just me. is anybody else compelled by the fact there is that adjacent space? >> president: i think that's your answer. >> commissioner chang: just to respond to that, commissioner lopez, and sharing thoughts and experiences and insights from being a former san francisco planner or planner for the city of san francisco, i think, generally, it's very tempting to be able to consider the adjacent lightwell. i think the thinking is that

there's nothing to stop the adjacent landowner, the adjacent property owner, in this case it's the same property owner, but there's nothing to stop them from doing the same thing, so while you have at this moment, 17' or close to 18', whatever that may be, by that logic, it's entirely possible for that to decrease, right. so we don't know, we don't have control and we can't bank on what exists today on another property purely because it's not part of that property. >> commissioner: yeah. that totally makes sense. i guess my question would be in instances such as this where the adjacent property owner's the same as the petitioner, you know, i'm wondering if we'd be able to put a restriction or a condition on the denial that,

you know, they agreed to that type of continued obligation on the property, on the joined properties. >> president: so potentially, you can put an n.s.r. and look if it runs with the title. especially of restrictions, but, again, we have a criteria of five and for us to overturn the department, it would require four commissioners to agree on that. and so, going further, potentially, i think but i don't think we have four commissioners that are willing to overturn the department on this particular case. >> director: additionally, i just want to add the adjacent property isn't the subject of this appeal. so we couldn't. we could not impose a restriction. >> president: the only thing is we can get since the same property owner to agree to it and continue it. again, even with that space, it

doesn't meet the five criteria. does that answer your question? sorry. >> commissioner: yeah. i guess i would ask ms. calhoun i would pose the question to you if going down that path would be acceptable to your side, the n.s.r. path to have that run with the title? >> i can say unequivocally, "yes" and the adjacent building is also residential and it's kind of a mirror building of our building. all those windows are for the units, any reduction which that wall was concrete were to be demolished and moved to reduce the width of the courtyard, they would lose residential

buildings on every level of their building. so the likelihood of that expansion in the future is extremely basically nonexistent. so i know that our client would be absolutely happy to agree not to expand that building in perpetuity. >> commissioner: and, just one fop-up. just so i'm clear, absent this variance, these units won't be made or is there a way to revisit the plans to address the subject of the denial? >> it's unclear to be honest. you know, these projects although straight forward can be very expensive to build. so at the end of the day, they would end up with three units instead of four. they would end up with that small bedroom in the front 371 square feet and these two very large three-bedroom units in the back which are kind of a challenging rental situation in

general for multi-family. they're also just not affordable as it relates to the goal of the adu program. a three-bedroom unit is probably $5,000 or $6,000 a month. maybe a little bit less than that. so that's the tricky challenge. i'm not sure if my client would want to proceed if there are only two, three bedrooms and then the one bedroom in the front. >> commissioner: thanks. >> director: okay. so we did have a motion on the table from commissioner chang to deny the appeal. on that motion, [roll call] >> director: so that motion carries 4-1 and the appeal is denied. we are now moving on to item number six. this is appeal number 21-059.

caterina fake versus the bureau of public works. 635 steiner street appealing the issuance on june 17th, 2021, to caterina fake of a public works order. with replacement adjacent to 635 steiner street since the trees are healthy and we'll hear from the appellant first. i believe mr. jim ho is here to represent the appellant. >> yes. can you hear me. >> director: yes. go ahead. >> hi. i'm the attorney for the appellant. if you don't mind, i'm going to share my screen right now so i can walk through some of these photos as i think it might be helpful to explain the trees.

so this appeal concerns the three trees on her property. as can you see here, this is 635 steiner. number one is a mexican fan palm. tree number two is a cabbage palm right here and tree number three is a spanish bayonet. and just to kind of give you more context, this is tree number one, the fan palm. tree number two, the cabbage palm and another photoof the cabbage palm here and then the third photo is the spanish bayonet. and you'll notice the spanish bayonet does not have one trunk. actually, it's a series of five different trunks with kind of a series of stems going up. and so, probably in the interest of time, i'll focus mainly on the mexican fan palm and so we're asking for removal of this tree due to damage to

my client's property. as you can see in this photo, the tree was planted on top of this 10' high retaining wall and it's on the border of my client's property which is here in the yellow and the neighboring property which is here in the blue. and i like to just kind of show you this because it gives you an overall sense of how high this retaining wall is. this is a prior picture from when my clients had their water main line repaired. as you can see, to get to that repair, the plumber has to use stairs and so, you know, the issue with the retaining wall and the overall height exacerbates the issue and makes this more of a unique circumstance and so this is a close-upshot of the fan palm. the issue here and this is the same thing that was noted by the arborist is that the trunk

will flare out and you can kind of see this triangular shape here. the roots are spilling over onto the neighbor's property here. you can see that it's been sured up with this kind of common lumber and the arborist noted that this could pose a risk of farther expansion and eventual damage and toppling of the wall. this next photo is a top down view of the base of the trunk and this concrete wall here as you can see separates the neighbor's property from our property. you see that the root expanding over it and this is the remnant water main pipe which is actually under the root system. and this is kind of the last top down view.

here's the sidewalk. the roots are overgrown. some of that has been mitigated due to maintenance by my client, but the root still spills over the wall. and so, again, we're asking for removal on the basis of property damage. so in the past, the water main which you can see here, this is an older photo. the water main actually broke due to root intrusion. you can see significant root growth here. over on the left here, you can see the roots kind of bulging and inner meshed with the paint and the concrete wall. this is another close-upshot from when the plumber had initiated the repairs. and, this is post repair. we've cleaned up the root systems a bit, but over here, you can sort of see, sort of

the extent of the root growth over the wall. so not only has the tree damaged the pipes, the water main, you can see here expensive cracking to this retaining wall and so this is the entrance to the property. you can see fairly significant long crack there that's been there for quite some time, but we do think that the tree is contributing to the load on the wall. here's another photo of the cracking and this is directly below the tree. and then more photos here of cracking. and so, i know time is limited, but i just want to touch base quickly on the other two trees. this is the cabbage palm which

is directly behind the fan palm. they're in close proximity to each other. you can see in this photo, there's not much separation between these two photos i think in the recommended tree list. it says that these cabbage palms require a large basin and, you know, this area is not a large basin especially in conjunction with the fan palm and the fact that it's an above grade garden bed. over here, you can see the system of the spanish bayonet. again, not a very large basin here in this photo from the sidewalk, you can see the bayonet kind of overhanging over to the neighbor's property. and so, you know, the arborist had noted that both the spanish bayonet and the cabbage palm

are overgrown and overmature for the site so we're requesting removal of all three trees. and so, with that, i think i'll take any questions from any of the commissioners. >> director: okay. thank you. i do not see any questions at this time. so we will hear from the bureau of urban forestry. >> hello. how are you doing tonight? >> director: welcome. >> all right. let me just share my screen. can you see my screen now? >> director: yeah. >> okay. yes, this case went to a local hearing. and at the hearing, automotive three trees were denied. these trees are all significant trees on private property.

just to reference, a significant tree is any tree tree on private property that is within 10' of the public right of way, is under 20' tall, has a canopy of 15' wide or 12" of diameter. it only has to be one of those three characteristics to be protected as a significant tree. first, i'm going to focus on the mexican fan palm. upon reviewing the appellant's brief, you know, it became more apparent to the damage that the palm was likely causing to the wall. it may not be the primary factor, but it's definitely not helping the structural integrity of the wall. it's clearly planted in a confined space and it can be

adding to the cracking in the wall. and, this is part of the when we originally denied the tree removal permit and they appealed to the hearing. some of the things they had mentioned was, i guess, damaged to the pipe, damaged to the retaining wall that has clearly been cracked and repaired a few times and what kind of stuck with me and as i was reading this appeal was when it rains in the wall cracks, it gets larger because of a drainage issue and that they were in order to properly fix that drainage issue, that palm tree would have to be removed. if they really wanted to get to the root cause because of the wall issues, that's why in my appeal for my brief, i kind of reversed course and said, buff

would be okay of the removal of the fan palm only if they did pursue an actual repair of the wall to get to the root issue which could be a drainage issue. as for the other trees, they were denied because we didn't find any overwhelming reasons to approve them for removal. the cabbage palm on, yes, it's slightly declining condition, but it's still healthy enough and it's far enough away from the wall that if they do some major wall repairs, it could survive construction and there was no, you know, the life safety issues, and the tree can remain in this condition for many more years. and, then as for tree number

three, again, no major defects. the tree is healthy. the wall adjacent to this particular tree is in good condition and it doesn't -- this section of the wall does not appear to be need to be repaired. again, just showing more photos of the tree no health issues and this is -- i thought this was a good photo. it's an older photo from google street view, but it shows how this tree is growing and the bureau of urban forestry would be okay with the owner selectively removing some of these stems to relieve some pressure off the wall whereas we can retain some of the canopy, but also free up the space for future plannings on. and maybe prevent future wall damage by removing a few of those select stems. this photo was just showing how

the wall near the spanish bayonet doesn't appear to be failing. again, just kind of in closing, the bureau of urban forestry would agree that the mexican fan palms should be removed, but only if the project would fix the root cause of the wall's failure. withdon't think they could properly fix the wall without removing that tree. that would be tree number one, the mexican fan palm on the right side of the photo, but we think the other two trees are in good enough condition to remain and don't be and are not causing damage to the property. thank you. >> director: thank you. we have a question from president honda. >> president honda: yeah. so i have two questions. this was continental divide an extensive brief, not on your

side, but on the permit holder one that the crack in the wall is pretty substantial and that is on a public right of way. that's a health and safety issue. how supportive or nonsupportive is the department in -- let me back it up one question. are these trees native to san francisco? i know the palm probably is not native to san francisco? >> no. i don't believe any of them are. >> president honda: so how supportive would the department be is one they had to prepare the wall to remove the tree as well as they removed all three trees allow planting of, you know, three or four other trees at a 36 box or minimum 24 box? >> yeah. i mean, i don't know how --

ideally we would like to see the tree two and three remain. we think they're healthy and they look fine at the site. i mean, it's not -- neither of the trees provide substantial canopy. >> president honda: yes. >> i mean, they're not by no means are they amazing trees. we primarily denied them because they're healthy and we didn't see any over womening reasons to approve them for removal. >> president honda: and then, did the permit holder ever talk about replacement with you at all? i didn't see it in your brief. >> yeah. it wasn't in my brief. they do have intentions to replace at least three trees there. it's a little difficult given that -- well the utilities are spaced in a way there's room to replant trees. there is an intention to

replant. >> president honda: since it's gone up. sometimes we allow it to be replaced and we find out if there's electrical and water. >> luckily, at this particular property, you can see where all the utilities enter the wall. you can see where the sewer line is and you can see where the gas lines are. so i think there's room. >> there's been kind of a change of what you would or

would not allow and i'm just sort of curious what is it that caused you to change but i'm just a little curious as to what happens in the intervening time, the department changes its position? >> yeah. i guess it's in my opinion i guess in the way i like to operate it's always being stubborn isn't always the best way forward. just because you state something beforehand doesn't necessarily mean you have to hold that line extremely hard. in this particular case, i

thought it was fair that if the property owner was really going to pursue. the reason they applied for approval was to prepare the wall and make sure the wall doesn't get damaged anymore and, you know, in reviewing the -- in reviewing the documents more the documents became obvious that you really can't fixeded wall or get to the root cause of the wall being fixed unless you remove that palm tree and we don't want to let them remove the palm tree unless they agreed to actually fix the wall. it's kind of like -- you know, we don't want to lose the palm tree if they're going to let the wall fall apart. if they're going to commit to actually repairing the wall, we wanted to leave that opportunity for them. >> commissioner: yeah. and i don't mean to apply